Team Libby Hires Mr. SCOTUS

Team Libby has added a lawyer. A lawyer who specializes in championing cases before SCOTUS.

Robbins, Russell spins courtroom losses into U.S. Supreme Court wins.

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Its lawyers have argued six cases before the U.S. Supreme Court, including two back-to-back one morning in December 2002. It has four wins and one split decision. [this was written in 2005]

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"They ae basically a portable appellate department,"

Said lawyer has brought an entirely different tone to the response brief: nasty and a bit disingenuous. As one example:

The government virtually concedes that, if this case is controlled by the "direction and supervision" test set forth Edmond v. United States ... then Mr. Libby's Appointments Clause challenge presents (at the least) a "close" question for appeal.

But the government did no such thing. The government points out that Edmond states that removability at will is a "powerful tool for control," which is a detail the Defense likes to gloss over.

This Court stated that it “would have no basis for adopting the view that an inferior officer must be under active day-to-day supervision. Rather, an inferior officer’s work must be simply be ‘directed and supervised at some level.’” Id. After reviewing the limits on the Special Counsel’s authority, including removability at will (which Edmond labeled a “powerful tool for control”), this Court concluded that for purposes of the Appointments Clause, “the Special Counsel is subject to the direction and control of the Deputy Attorney General.” Id. Even if this Court had applied Edmond, the defendant’s argument that Edmond requires day-to-day supervision, while perhaps presenting a more difficult question than the application of Morrison, would not present a substantial issue on appeal.

More difficult but not a substantial issue on appeal, concedes ... those are not the same things, huh?

So today's hearing should have some interesting new personality dynamics. Good thing we've got the blogosphere's resident shrink liveblogging it.

One thing the addition of Robbins suggests, though, is these guys aren't going to roll over and let Libby be pardoned anytime soon. Robbins' job is to get this reversed, before Justice Roberts' court if need be.

So if these guys are not going to "let" Libby be pardoned (let him admit guilt and remorse?) then why the hell all the chest beating from Toesing, Matalin and Thompson about a pardon? What is the point of it all--to raise $$?

I have yet to see how the defence justifies requiring "day to day" control, with the main reason for Fitzgerald's appointment in the first place, the recusal of AG Ashcroft. These types of "Chinese wall" situations happen all the time in the legal world, and there are all kinds of cases recognizing the need for distance to protect the parties and the proceeding itself from any taint arising from the original recusal.

ANd one of the interesting points about that is that two of the areas where the defense would like to have had AG oversight--subpoenaing journalists and CIPA--are the areas that Team Libby's defense strategy and Libby's own lie strategy failed on.

They're asking for a do-over. "We almost had the perfect obstruction. Now let us change the rules so it WILL be the perfect obstruction."

In a very cynical way, perhaps Team Libby's wish for Scoots to get a pardon might be the worst thing that they could hope for.

After all, if Scoots gets that pardon, he have no protection against "any" proceeding that required his truthful testimony about what Deadeye and Junya "really" did to the Wilsons.

Scoots would have no 5th amendment protection against self-incrimination, nor could he in any way decline to answer truthfully unless he wanted to end up right back in the pokey for perjury, lying and obstruction of justice.

Scoots would be on this "hook" for any further Fitzgerald GJ efforts (Fitz has "not" laid down his plenary Special Prosecutor powers), nor would Scoots be able to avoid the very same legal jeopardy from any of several Congressional committee investigations.

All in all, Scoots is hangin' between that proverbial "hard place and a rock".

Team Libby "apparently" doesn't fully realize the danger to them all from a Scoots pardon.

Only a very few of them have woken up to their own jeopardy, and realize that what they really want/need Junya to do is "commute" Scoot's sentence, not pardon him.

Yes, while "commuting" Scoot's sentence ain't all a bowl of cherries for Scoots himself, it at least offers him a shield against some/most future legal proceedings.

I'm guessing that Deadeye knows full well the difference between a pardon and a commutation, and since we "rarely if ever" get any glimpse of the real Deadeye behind-the-scene machinations, it is a good bet that he is pushing Junya toward "commutation" and not to Team Libby's "pardon".

I'm just reading Pach's liveblogging of the Libby hearing at FDL - Robbins is being extremely condescending to Judge Walton - rather than addressing Judge Walton's pointed questions on the harmony of Morrison and Edmonds, he states he thinks the DC Appeal Court will decide the matter differently, that he was there when Scalia read his dissent on Morrison, - the arrogance is appalling to me. I'm starting to think that the strategy is to get Bush to free Scooter pending appeal, using his clemency power like Nixon did with Calley, with a dash of James Baker's strategy in Bush v Gore, get it to the Supreme Court where they think they have the votes, if somehow they don't get Silberman or Sentelle on the appeal.

"Walton: With all due respect, these are intelligent people, but I would not accept this brief from a first year law student. I believe this was put out to put pressure on this court in the public sphere to rule as you wish. [Reggie pissed]

Robbins: These 12 schoars believe this is a close question.

Walton: If I had gotten something more of substance from them, maybe."

It appears that getting Libby's conviction reversed by the Supreme Court or, as Mad Dogs suggests, commuted, is the ideal solution for this Administration. The case will be ongoing, the downside of a pardon can be avoided, including the bad PR for Bush. And money is no object. When you consider the legal and financial effort put into, in Conason's words, "the hunting of the President (Clinton)" this chump change. The Administration's defiance in all the areas where Congress and citizens have felt the need to investigate and exert power is glaringly consistent. In "Chronicles," Dylan reports that someone told him "the Enlightenment ended with WWlI." His reaction was, wait, I love those ideas. And so do I; so do we. We built our democracy on them -- the rights of man, the protections in the Bill of Rights, free public education. It's my contention that a key reason the Neo-Con revolution is failing is that the American Public is educated. Maybe less so in that people might now snear at "Liberal Education" and are promoting Creationism in schools, but still. Bush/Cheney and their crowd have asked the public to trust them, to believe they know more, know better. All we should do is practice our faith and fight their wars. They have asserted repeatedly that they are above the law and supervison by mere citizens and our representatives. Well, we're not buying it. I almost feels like a new Civil Rights movement.

Woodhall Hollow"So if these guys are not going to "let" Libby be pardoned (let him admit guilt and remorse?) then why the hell all the chest beating from Toesing, Matalin and Thompson about a pardon? What is the point of it all--to raise $$?"

Partly. Another possible reason - and this may be straying slightly into tin-foil territory - is to give Bush breathing room for commuting Libby's sentence by advocating a position to the right of that.

The argument here is that by commuting Libby's sentence, Bush neither absolves Libby of guilt nor requires contrition, it arguably preserves Libby's right to take the fifth, and it provides cover for pundits to hail Bush for taking a 'middle path'.